"Inartful wording..."

[Frank Ettin]

Originally Posted by bandaid1

...I understand the general context that you are putting forward, however just like VA doctors are not required to obtain a state license in the state they are working in, nor are military doctor or lawyer required to either, so long as they primarily work on federal lands, there are exceptions (Civ Hum Cases) These exceptions mean that there is a way around these rules....

They aren't ways around the rule. They are narrow situations in which the rule does not apply. In the case of the government or military doctor, he is not practicing medicine in the general public.

In the case of lawyers, again, military lawyers are not practicing in the general public. It has also always been the province of courts to decide who is authorized to appear before them, and a court may, but is not required to, allow a lawyer not licensed in the jurisdiction to appear in a specific case (on a motion pro hac vice).

[doofus47]

Vanya

Given that the traditional, one man/one woman definition of marriage is fundamentally based in religion (hence the frequent use of "God-given" in this context), getting the state out of the marriage business would make sense on the basis of the separation of church and state, which certainly is enshrined in the Constitution.

No, it's not a given. Marriage is a social institution created by societies to govern/form/protect the creation of the next generation and the handing of property down through generations and across families. All societies have a different historical take on marriage (sometimes societies are polyandrous or polygamous for example), but these fundamentals of purpose apply pretty consistently. For a religion or a society to say that one man/one woman (or one man/4 women or one woman/four men) is a "God given" standard is one thing. It would be similar to a society saying that there are 'unalienable rights' such as the right to self-defense. To say that marriage is based on religion is a bridge too far. Even in atheist Communist Russia, the state had rules governing marriage.
Society has an interest in marriage and maintaining social stability by regulating social relations. Marriage and the orderly dissolution of marriage, if required, would be important areas of regulation.

The argument for gay marriage would be that it creates social stability by allowing same-sex couples to combine property and pass it on in a stable way that reflects the common desire of the couple. Additionally, it allows the couple to enjoy common benefits (such as health insurance, or legal power of attorney) that they should enjoy as a committed couple. If a couple wishes to unite treasure and mutual compassion that should be encouraged.

Children and gay marriage seems to be a bit of a muddle. Gay couples can adopt in some areas (now all areas, I suppose) and that seems to be generally functional. Probably, in the end, the pros and cons for an orphan being raised in a same-sex household will be about the same list of pros/cons as being and orphan sent to live with a bachelor uncle or a spinster aunt.

The area where gay marriage veers away hardest from traditional marriage is in the realm of child creation and the relationship between the parents and the child. Patently, child conception is unfeasible for a same sex couple w/out the addition of a third party of some stripe--surrogate parents or sperm donors, etc. The state's historical role in regulating child rearing functions in relation to marriage (consanguinity, paternity, bigamy, etc) is about to get a bunch weirder by allowing that a gay couple is married. How will paternity work for the child of donated sperm, if the gay couple breaks up? Can the mother (or both mothers) sue for support from the donor? Or from the state?

I don't have answers nor an opinion. I just guess that by filing any social pairing under the same header as that of the historical marriage, the state's interest in regulating child-related rights/responsibilities is going to undergo some changes.

Exec summary: Marriage is a social relationship whether defined in any particular form by a religion or not. The state has an interest in the relationships involved in this institution as it involves (at root) cross-generational social stability and rights/duties. Throwing gay marriage into the same chum bucket with traditional marriage will have unexpected questions being raised.

[zukiphile]

Originally Posted by d47

I just guess that by filing any social pairing under the same header as that of the historical marriage, the state's interest in regulating child-related rights/responsibilities is going to undergo some changes.

Indeed. The notion set forth by some SSM advocates, that we can change the rationale for something, the way we think about something, without altering it is implausible.

Originally Posted by d47

Throwing gay marriage into the same chum bucket with traditional marriage will have unexpected questions being raised.

Or some ways that are easy to anticipate. In my state, the offspring of a married couple are presumed to be the parents of that offspring.

Under that rule, a woman could marry another woman, bear a child against the the explicit wish of her partner, and the child would be presumed at law to be the child of that partner (a biological impossibility), including an obligation to support that child to adulthood.

[tyme]

Originally Posted by zukiphile

I would ask you to consider your reasoning here and whether it is equally compelling on other issues:

I've tentatively reached the point where I'd rather give up the notions of an individual right to arms than more innocent people shot. If you have a gun, you should, I think, be prepared to sacrifice a significant amount of liberty in your decisions, and it should be kept in a locked cabinet at a police station.

Right, because natural persons are the same as artificial persons and therefore I'm going to see that analogy as valid.

[tyme]

So if you define marriage that way, with marriage still a fundamental right, is marriage supposed to be predicated on love or not? And do you believe that homosexuals can love the opposite sex but just choose not to? Who among us is qualified to make that determination for someone else?

If anyone is free to cross-sex marry anyone else, that's sufficient to satisfy the right to marriage? It's too bad for them if they only love people of the same sex, and too bad for them if they're trying to raise a child with a partner of the same sex?

I'm curious, what would you think of a SSM amendment if it were passed/ratified? Would you consider it logically incorrect to define marriage that way, despite the amendment, or would you recognize a redefinition of the social construct of marriage? If the latter, then you can't assert that marriage is between a man and a woman, because it's only that way because of cultural bias.

While it's technically true that there are means for same-sex couples to acquire (nearly) any sort of legal right with respect to children that a heterosexual parent would automatically enjoy, is it not true that it's a lot more effort and legal hoop-jumping to execute all the powers of attorneys and directives required?

Most importantly though, your position begs the question of what a marriage is. Certainly marriage is a fundamental right, and had that been denied to anyone the issue would be quite different. The issue presented is whether it violate the constitution for a state to define marriage according to gender/sex.

First principles: Marriage is a fundamental right (or so the SCOTUS has said, repeatedly). Marriage is (supposed to be) based on love. Love is subjective. State-sanctioned marriage is valued because it confers a package deal of social and legal benefits that are difficult to get otherwise.

What possible conclusion can you reach, unless you believe in some a priori definition of (additional elements of) marriage, other than: any people who love each other should be able to marry unless there's a compelling government interest in preventing it? Not a "we don't like it" or "maybe it will result in this or that bad thing" kind of justification, but a compelling justification. If the state doesn't want to be in the business of giving benefits to married couples just because they're married, it can get out of that business, leaving marriage as, essentially, a turnkey bundle of legal agreements. The State might decide to only offer certain benefits to child-rearing couples, for example. It already does so, in some ways (see later in the next paragraph).

I don't know all the legal and financial benefits of marriage, but as far as I'm aware there are some social security implications, and there are a significant number of legal decision-sharing rights that each person can make for their spouse given the right circumstances, without a bunch of extra legal paperwork. Is it such a big deal to give gay couples those things? And various other things related to households and child welfare, like child tax credits or claiming other individuals as dependents, already exist in tax code completely separate from the concept of marriage.

All the hypotheticals about consanguinity and polyamory... prohibitions against those things are not often enforced (as long as the participants are consenting adults); they're merely taboo (the former more than the latter). What we're talking about is marriage, not the underlying relationship. If there are major problems with genetic defects from inbreeding, and we want to codify a preventative social taboo by legally restricting siblings from getting married, let's also talk about forbidding people with serious heritable diseases from marrying, too. I have a feeling there would be immediate cries of, "But that's eugenics!" And, as someone pointed out, we can't use that to justify banning same-sex sibling marriages, can we?

You can very easily differentiate marriages to non-human animals, marriages to corporations, etc, on the grounds that those are not natural persons, therefore the right to marry doesn't attach to the non-human participant(s) in those hypothetical marriage applications. I think this ruling will and should put pressure on people and the courts to reevaluate the marriage of close relatives and the restrictions against multiple simultaneous marriages or group marriages.

[bandaid1]

"The argument for gay marriage would be that it creates social stability by allowing same-sex couples to combine property and pass it on in a stable way that reflects the common desire of the couple. Additionally, it allows the couple to enjoy common benefits (such as health insurance, or legal power of attorney) that they should enjoy as a committed couple. If a couple wishes to unite treasure and mutual compassion that should be encouraged"

This same argument would stand for Gay incest. The reason why incest is illegal is due to the issue of genetic abnormalities mostly. However if genetic abnormalities is the reason to deny incestuous relationships then a gay incestuous relationship would not be involved under this ruling, and since we don't sterilize those with genetic abnormalities (anymore) then as you say, the benefits fit your same arguments.

The other issue also involves consent. For example what about the issue of parental consent to marry, lets say Kansas, where the parents can authorized a 15year old to get married. What if it was a consent to marry them?

[zukiphile]

Originally Posted by tyme

Right, because natural persons are the same as artificial persons and therefore I'm going to see that analogy as valid.

Your preference that others you disfavor should willingly relinquish their rights for something you identify as a greater good doesn't have a principled compenent that would keep it from being applied to natural persons. Indeed, natural persons are subject to all the laws you referenced.

Originally Posted by tyme

So if you define marriage that way, with marriage still a fundamental right, is marriage supposed to be predicated on love or not? And do you believe that homosexuals can love the opposite sex but just choose not to? Who among us is qualified to make that determination for someone else?

Love is not a restriction on marriage in any state, and no law in question kept anyone from loving anyone else.

Originally Posted by tyme

If anyone is free to cross-sex marry anyone else, that's sufficient to satisfy the right to marriage?

Your question assumes as true a misunderstanding of family law. It is not true that anyone is free to cross-sex marry anyone else. Note restrictions on marital status, age and consanguinity.

Originally Posted by tyme

I'm curious, what would you think of a SSM amendment if it were passed/ratified? Would you consider it logically incorrect to define marriage that way, despite the amendment, or would you recognize a redefinition of the social construct of marriage? If the latter, then you can't assert that marriage is between a man and a woman, because it's only that way because of cultural bias.

I would see even an ordinary legislative enactment of SSM by a state as entirely consistent with a state's right to legislate on the topic.

Originally Posted by tyme

First principles: Marriage is a fundamental right (or so the SCOTUS has said, repeatedly). Marriage is (supposed to be) based on love.

I think you have misunderstood legal marriage as something romantic. Are you aware of any state that require participants to be "in love"?

Originally Posted by tyme

What possible conclusion can you reach, unless you believe in some a priori definition of (additional elements of) marriage, other than: any people who love each other should be able to marry unless there's a compelling government interest in preventing it? Not a "we don't like it" or "maybe it will result in this or that bad thing" kind of justification, but a compelling justification.

That isn't a constitutional standard.

There may be no compelling governmental interest in a 60mph speed limit. 67mph might be very safe for much of the population. That doesn't make a 60mph speed limit a violation of the federal constitution.

Originally Posted by tyme

I think this ruling will and should put pressure on people and the courts to reevaluate the marriage of close relatives and the restrictions against multiple simultaneous marriages or group marriages.

You may be right, but a federal right to state recognised incestuous marriage would most often be seen as an argument against the majority opinion.

[ronl]

Okay, this entire discussion should have been closed quite a while ago; because it has nothing at all to do with gun rights. I do applaud the mods here for keeping it open and allowing discussion to continue, for it is an important issue to understand. The most important thing to realize is that less than 2% of the entire population has produced a major shift in the political arena. The repercussions of this decision will reverberate through the rest of human history. This is rather ominous as far as gun rights go. I think all who are involved can agree that there is a decidedly obvious desire in the minority of the most affluent of our population to do away with the right of the citizens of our republic to own guns. Such a desire will be accomplished regardless of laws as they are written, or the belief system of the majority of the republic. Flat out telling it as it is; we are screwed. We have reached the point where you have to decide which side you come down on. Decide right now. Words as they are written mean nothing. Our future is in the hands of an elite few who decide the fate of all of us; or so they think. I believe we are capable of deciding our own fate.

[Tom Servo]

Okay, this entire discussion should have been closed quite a while ago; because it has nothing at all to do with gun rights.

This subforum isn't just about gun rights; a wide range of civil-rights and legal issues are welcome.

The Obergefell and King decisions could have consequences beyond their respective issues, and they cast doubt on how SCOTUS may interpret other cases in the future. Had this thread remained about those issues, I'd be all for keeping it open.

But we've drifted, and people are chiming in about gay marriage as a general social or moral issue. That's beyond the scope of this forum.